Restaurateur Frank Chivas' company sued over overtime wages

CLEARWATER — Three construction workers are suing Tampa Bay restaurateur Frank Chivas' newest business Marina Cantina and construction company Primary Structures, alleging the two companies concocted a payroll scheme to avoid paying laborers overtime.

In the lawsuit, filed in federal court under the Fair Labor Standards Act last month, lead plaintiff Ed Samonte alleges workers often clocked more than 40 hours a week building the $2.5 million restaurant at the Clearwater Beach Marina but were not paid time and a half as the law requires.

Laborers, according to the lawsuit, were commonly paid for 36 hours of work with a Primary Structures check and any additional hours per week from a Marina Cantina account, which did not withhold taxes and paid only straight time.

"This is not inadvertently failing to pay your employees, this is being done by design," said attorney John Gadd, who is representing Samonte and two other workers who joined the lawsuit, Mike Cain and Emanuel Flores. "These are checks being issued out of two separate operating accounts."

In a statement, attorney Brian Aungst Jr., who is representing both companies, called the issue "a clerical payroll error."

Aungst said upon learning of the error from the lawsuit, Chivas, who owns a number of local restaurants, including Island Way Grill and Salt Rock Grill, and was named the 2015 Mr. Clearwater, made arrangements to pay all affected employees.

To date, 12 employees have been contacted and paid double what they were owed in back wages, as required by labor laws, Aungst said.

And days after the filing, Aungst attempted to settle out of court with Gadd and his clients for back wages and full damages.

"We value and respect all of our employees and routinely provide our employees with assistance and support both in and out of the work place," Aungst said in the statement. "We are proud of our employees and our reputation of philanthropy and civic engagement. We are disappointed a lawsuit was filed in this matter as it would have easily been resolved outside of litigation."

However, Gadd said he believes a larger, undetermined number of workers has been denied due overtime, and he filed a motion to certify the lawsuit as a collective action, allowing other affected employees to join the lawsuit.

The plaintiffs are seeking back pay, damages, attorney's fees and costs.

"The lawsuit is not just for the three people, it's on behalf of an entire class of individuals," Gadd said. "There's a host of similarly situated people out there who have not been paid anything and who have not had an opportunity to participate in the case."

Contact Tracey McManus at tmcmanus@tampabay.com or (727) 445-4151. Follow @TroMcManus.